several years ago i was hanging around with my arabic teacher and her husband (who is also a professor at a local college and a convert to islam). the husband got wind of what i do for a living, especially the part about all the arbitration cases i handle (disputes concerning collective bargaining agreements almost always end up in arbitration) and asked me whether it would be possible to set up a system of sharia courts in philadelphia. the plan was ask for members of the local muslim community to sign an arbitration agreement which would appoint local muslim scholars as arbitrators to decide any disputes which may arise concerning inheritance or family law. as he described the plan, it became clear that they had already done some research into the idea, but he was concerned that a sharia arbitration decision would be found to be unenforceable if challenged in court. like most times when people ambush me with legal questions, i had no idea what the answer was. as much as i dealt with the pennsylvania arbitration act, it was always in the narrow sphere of employment questions, i simply had never thought of using the arbitration act so creatively.
later i thought about it and two problems popped in my mind: (1) arbitration agreements are only binding on those who agree to them. minor children can't agree to arbitrate disputes over them and in family law the interest of children is considered separately from the interests of their parents (so the parent cannot give consent for a child). so the arbitration agreements would probably be unenforceable to the extent they involved children.
(2) there was a real possibility that a judge reviewing an arbitration decision would simply rule that sharia is against public policy even if all parties had agreed to be bound by it and were capable of giving such agreement. (this was pre-9/11/01, but it seemed like a possibility then too). i passed on my thoughts, adding the disclaimer that i had not actually researched the issue and it was not the type of law i usually deal with, then forgot about it.
today, i was catching up on my blog reading and found this entry over at echidne of the snakes that something like the arbitration idea has been up and running for some time in ontario. the article echidne cites does not directly address either of my reservations about the idea. (although it alludes to my second reservation in this sentence: "According to Ontario's Arbitration Act, an arbitrator's ruling is not enforceable by a court of law unless it supports the principles of fairness and equality."). i wonder if any of these arbitration cases have withstood a court challenge in canada? the fact that the article doesn't say probably means there have not been any court challenges yet.
